Whistleblowing

Whistleblowing is when an employee raises a concern about wrongdoing, malpractice or poor practice in the workplace that has a public interest aspect to it. Whistleblowers mostly act because they have ethical or professional concerns about what is happening in their workplace. We have seen these concerns raised across the spectrum of the public realm, from tax collection to the quality of health and social care to the roll-out of rural broadband. Careful and appropriate treatment of whistleblowers is important to protect and reassure the workforce, and to encourage openness that is vital to supporting better public services. Whistleblowing has become much more high profile in recent years, as well-publicised cases such as Hillsborough and the Mid Staffordshire NHS Foundation Trust inquiry have shown.

The treatment of some whistleblowers has been shocking and departments have sometimes failed to protect some whistleblowers from being victimised. We have heard of too many cases of appalling treatment of whistleblowers by their colleagues, but departments were unable to tell us if those who have threatened or victimised whistleblowers had been sanctioned. We heard from a whistleblower in the Care Quality Commission who was victimised by senior departmental officials, but it appeared that no-one had been sanctioned as a result. Public Concern at Work could recall only one case where an employee who victimised a whistleblower had been sanctioned. This lack of action has a profound impact on confidence and trust in the system, and means that employees are less likely to blow the whistle for fear of what may happen to them. In a survey of Ministry of Defence employees, only 40% of respondents felt they would not suffer reprisals if they raised a concern, and a survey of Department of Health employees found only 54% of respondents felt confident that they could speak up. None of the departments we heard from had systematic arrangements in place to provide support and advice to whistleblowers. Recommendation: Where the identity of whistleblowers is known, departments must ensure that they are protected, supported and have their welfare monitored. This should include: • Ownership from the top by assigning a board member who is accountable for the proper treatment of whistleblowers. • Providing whistleblowers with appropriate support and advice, such as access to legal and counselling services. • Appropriate and swift sanctions against employees, at all levels in the organisation, if they victimise whistleblowers.

Whistleblowers are often unclear who best to raise their concerns with. Across the civil service, over one third of employees do not know how to raise a concern under the civil service code. A Ministry of Defence survey found that 57% of employees who responded did not know that a whistleblowing policy existed. We heard that some departments recognise this problem and are acting to address it, with both the Ministry of Defence and Department for Education introducing clearer policies 6 which the workforce know about and feel confidence in. We previously commented, in our March 2014 report on the contracting out of public services, on the lack of effective arrangements for whistleblowers employed by private companies delivering public services with the taxpayer’s pound. Legislation has enabled contractors to nominate someone in the contracting department as a person to whom whistleblowers can make authorised disclosures, but none of the four contractors we examined for that report had done so. Recommendation: Departments should provide all employees with a route map that clarifies suitable internal and external reporting routes. This should be replicated through the delivery system with clear obligations on private and third sector providers delivering public services that they must employ strong and effective whistleblowing policies.

There is a lack of transparency on how departments address concerns raised by whistleblowers. Whistleblowers need to know that they will be kept regularly informed on the progress of their cases and that they will be told about changes and improvements which have come about because of the concerns they raised. In practice, whistleblowers are not routinely informed about how their concerns have been handled and what outcomes have been reached. We heard from one whistleblower who felt excluded and ignored when she was not kept informed of progress in investigating her concerns. Departments accepted the importance of publicising the outcomes of whistleblowing cases, but there is little evidence that they have enacted this in practice. Recommendation: Departments should: • Have clear arrangements for reporting back in a timely fashion to whistleblowers on how their concerns have been addressed. • Publicise to their workforce and tell the whistleblower about changes they have made to processes and policies as a result of whistleblowing. • Report on the effectiveness of whistleblowing arrangements in their governance statements in their Annual Report and Accounts.

There is a startling disconnect between the generally good quality of whistleblowing policies in theory and how arrangements actually work in practice. Departments have taken steps to improve their policies in recent years, for example more departments have adopted the good practice policies produced by the Civil Service Employee Policy service. Employees, however, continue to lack trust in the system and remain sceptical that their concerns will be dealt with properly. The civil service survey in 2013 found that only 67% of respondents were confident that if they raised a concern it would be investigated properly. Departments have not defined the measures to help them monitor improvements and understand whether their whistleblowing policies have been implemented successfully. Recommendation: Departments should assess whether whistleblowing arrangements are effective by making better use of currently available measures, such as the civil service survey, and introducing others, such as trends in the 7 number of whistleblowing cases and the timeliness of investigations. Departments should also consider how they can enhance their support for whistleblowers, looking for instance at measures like tracking employment skills and career progression and asking whistleblowers about their views on the whistleblowing process.

Whistleblowers can help organisations identify systemic issues, but departments are not exploiting this intelligence. We have heard at first hand of concerns raised across a wide range of public services delivered by the public, private and voluntary sectors. Some departments, such as the Department for Education, are totally reactive and only know about concerns that are raised directly with them. They do not know about concerns raised by whistleblowers across the range of organisations in their sectors and at the front line of delivery. Departments are therefore not receiving all the intelligence that they should. The failure to know what staff or clients say makes it more difficult for departments to assess whether there is a systemic issue of concern in a particular service or in a particular workplace. Recommendation: Departments should collect and apply intelligence on concerns raised by whistleblowers from the full range of arm’s length bodies and other providers involved in their sectors. They should use and analyse the data to identify any systemic issues.

The lack of cross-government leadership has led to inconsistency in whistleblowing arrangements. Across government, there are some sources of advice and guidance on whistleblowing arrangements, for example guidance from the Civil Service Employee Policy service. However departments can choose to use or ignore the guidance. Departments are not challenged or held to account for their policies on whistleblowing. While we recognise that systems will vary to a degree, strong leadership within central government is needed to ensure departments learn from what works and improve in whistleblowing arrangements. Recommendation: The Cabinet Office should set out how it will ensure whistleblowing policy and practices receive the strong leadership they need, so that there are consistent expectations across government and departments can be held to account.

In our previous report on special severance payments, we recommended that the Cabinet Office issue revised guidance requiring public sector organisations to seek approval from the Cabinet Office for all special severance payments and associated compromise agreements where they relate to cases of whistleblowing. In its response to our report, the Government agreed with our recommendation, but did not address the point that public sector organisations should secure approval from the Cabinet Office for any such payments. Recommendation: We reiterate our previous recommendation that public sector organisations should secure approval from the Cabinet Office for all special severance payments, and associated compromise agreements, where they relate to whistleblowing. We expect to see this included in the Cabinet Office guidance. 9 1 Supporting and encouraging whistleblowers

Kay Sheldon told us that the Gill Rider review: “…was not independent… Frankly, it was a deliberate hatchet job; there is no other way to describe it.”10 Kay Sheldon said to us: “I met with the person doing the review for about an hour, and I was told it was going to report within 10 days, but it didn’t. It dragged on. I didn’t hear anything else, but when I got my personal data, I found out that the person doing the review, the CQC and the Department of Health were in quite a lot of contact. I was completely out of it. I didn’t have a voice.”11

Kay Sheldon also told us that no disciplinary action had been taken against any of the people involved in her mistreatment and that she was surprised that they were still in their posts, despite her concerns having been vindicated subsequently by an independent review.12 We asked Una O’Brien about what has happened to people who had made threats and perpetrated bullying against whistleblowers, and whether any disciplinary action had ever been taken against people for these actions. Una O’Brien was unable to provide any information as the Department did not collect it from NHS employers. Una O’Brien said that there were such cases locally, and accepted that the Department had not brought these 6 Qq 10, 15-19 7 Q 245 8 Q 245 9 Q255-6 10 Q10 11 Q10 12 Qq 10, 19 11 to the fore, or made them visible in the public domain. Una O’Brien agreed to consider whether this could be done.13

We heard from Public Concern at Work and other departments that departments have not effectively dealt with employees who victimise whistleblowers.14 Public Concern at Work told us that it was rare for someone who has victimised a whistleblower to be sanctioned, and that it was only aware of one case where this had happened, which was at the Mid Staffordshire NHS Foundation Trust. The other departments were also unable to give us any concrete examples of where they had taken disciplinary proceedings against an employee who had victimised a whistleblower.15

If reprisals do occur, whistleblowers should reasonably be able to expect that their employer would provide them with the extra care and support that they need. However, Kay Sheldon told us that her employer had initially denied her legal help after the Secretary of State for Health had told her that she might have met the statutory grounds for termination of her appointment on the board of the Care Quality Commission. Kay Sheldon told us that she sought legal advice herself, and that this considered the Gill Rider review was unfair and unlawful. She presented the advice to the Secretary of State for Health and told us that: “I agreed not to sue Andrew Lansley and he agreed not to remove me”.16 Both HM Revenue & Customs and the Department of Health acknowledged that they did not have an earmarked budget to support whistleblowers, although both claimed that they had some resources which they could make available to cover costs such as legal advice.17

Whistleblowers are not always clear with whom they should raise a concern.18 For example, the 2013 annual civil service survey found that although 89% of respondents were aware of the civil service code, over a third did not know how to raise a concern under the code.19 A survey of employees in the Ministry of Defence found that 57% of respondents did not know that a whistleblowing policy existed. The Ministry of Defence told us that, in response, it was introducing a new policy that will clearly set out all reporting routes. It also said that it planned to send the policy to all employees, and to publicise its whistleblowing arrangements through an awareness week and training programmes.20

The Department for Education operates in a system with many different entities, ranging from arm’s-length bodies and regulators, to schools and academies, each of which has distinct areas of responsibility. The NAO found that reporting routes were not consistent in the whistleblowing policies that it examined from the education sector, and that employees could raise their concerns with many different internal and external bodies. The NAO concluded that this could result in fragmented intelligence, particularly if the 13 Qq 200-201 14 Qq 3, 10, 14-19, 77, 89-90, 114 15 Qq 2-5, 99-100, 110, 112, 141 16 Qq 25, 32 17 Qq 146, 150-151 18 Qq 10; C&AG’s Report, paras 3.2, 3.9 19 C&AG’s Report, para 4.5 20 Q 139 12 intelligence that was forthcoming was not shared.21 The Department for Education acknowledged that it was often unclear to people how they should raise an issue, and that at the moment it did not have a route map for people, explaining how they should raise concerns.22

It is also often unclear to whistleblowers how departments have addressed their concerns once these have been raised. Kay Sheldon told us that she had been asked not to attend board meetings. She described how she was not given sufficient information about the Gill Rider review, had a one hour interview only with Gill Rider, and was not told what other people had said to Gill Rider. Kay Sheldon found that this prevented her from responding effectively to comments made about her.23

Kay Sheldon told us that “a secret mental health report” had been carried out about her, and that an issue about her mental health had been raised by the then Chair of the Care Quality Commission, Jo Williams. She also told us that Una O’Brien at the Department of Health was involved, although she did not know the extent of this involvement. Kay Sheldon told us that Una O’Brien’s office had recommended that a private occupational health company, Medigold, carry out the assessment of her mental health.24

Kay Sheldon said that Jo Williams had told her that she had been referred to Medigold. She told us that she had only a ten minute conversation with Medigold and that she later found out that they had prepared a three page letter about her, stating she: “probably had paranoid schizophrenia, and that…my medical notes should be obtained in confidence.”25

We asked Una O’Brien about her involvement in a review of Kay Sheldon’s mental health. Una O’Brien stated that Jo Williams had raised with her a request from Kay Sheldon for her needs to be assessed under the Equality Act 2010. Una O’Brien stated that she had told Jo Williams that she would turn to the occupational health service if approached with such a request. This service was provided by Medigold at the Department of Health and it was one of the providers at the Care Quality Commission. Una O’Brien told us: “I did not recommend them [Medigold] as such. This was just a conversation and a suggestion”.

We asked Una O’Brien whether she had received the report on Kay Sheldon’s mental health. Una O’Brien told us that she had received, but not examined, a medical assessment of Kay Sheldon’s mental health, and that Gill Rider had not received the assessment. Una O’Brien considered that the medical assessment was not relevant to Gill Rider’s review. When Una O’Brien learnt that the diagnosis on Kay Sheldon from the medical assessment was that she was suffering from paranoid schizophrenia, Una O’Brien told us that she was shocked and that she did not consider it a proper diagnosis. Una O’Brien also told us that no-one in the Department of Health had seen Kay Sheldon’s personal medical records, that 21 C&AG’s Report, , paras 3.12, 3.14 and Figures 11, 15 22 Q 66 23 Q10 24 Qq 10, 32-38 25 Q38 13 Gill Rider did not see them either, but that she did not know if anyone at the Care Quality Commission had seen them.

Research by Public Concern at Work showed that institutional silence is a common reaction to whistleblowers, with 60% of the whistleblowers it surveyed receiving no feedback from management in response to their concerns.26 This inaction affects employees’ confidence in how departments will handle concerns. In the 2013 annual civil service survey, only 67% of respondents were confident that if they raised a concern it would be investigated properly. Cases can be ‘lost’ from a whistleblower’s perspective, which may result in employees feeling less motivated to come forward when they feel that things have not changed in the past. 27

Public Concern at Work told us that publishing intelligence on whistleblowing cases received and outcomes is one means by which departments can increase their employees’ confidence in arrangements, as it enables employees to see how organisations have dealt with issues.28 Departments agreed that publicising the outcomes of whistleblowing cases is important, but we heard about only limited initiatives to do so. The NAO found that only HM Revenue & Customs of the departments it reviewed had published the outcomes to its cases, but even this only included criminal cases.29 The Ministry of Defence told us that it recognised “the importance of explaining to people where whistleblowers have whistleblown and what we have done about it”, and as part of its new whistleblowing policy it intended to publicise how this was being implemented. And the Department for Education told us that the Education Funding Agency publishes on its website redacted reports, following a whistleblowing investigation.30 26 Q1; C&AG’s Report, para 3.3 27 C&AG’s Report, paras 4.13, 4.18 28 Q 8 29 C&AG’s Report, para 4.18 30 Qq 55, 139 14 2 Making sure the systems in place are effective

Public Concern at Work told us that there is often a gap between the quality of the whistleblowing policies and how arrangements work in practice.31 The NAO had found that departments generally had adequate whistleblowing policies in place that sought to reassure whistleblowers, and that there were suitable governance systems to support these. In recent years departments have improved their policies; for example, more departments are using the good practice policies produced by the Civil Service Employee Policy service.32

However, we heard little evidence that departments had yet achieved the culture change that was needed to ensure whistleblowing policies worked effectively. For example, Public Concern at Work told us that most of the policies it had looked at were overly legalistic, and that they were looking at the issue from “the wrong end of the stick”.33 The Department of Health told us that culture change was not achieved overnight, and it admitted: “There is a huge amount more that we need to do, particularly to enable employees in front-line operations and providers to feel that the culture and leadership in those organisations is one where they do feel more confident about speaking up.”34

Some departments acknowledged at our hearing that they do not collect good quality intelligence in connection with whistleblowing. We found, for example, that departments do not record even the most basic information on whether whistleblowing has been detrimental to an individual or damaging to their careers. None of the departments could tell us how many whistleblowers went on long-term sick leave after raising a concern. This indicator is one that is used by the US Congress and by European institutions to gauge whether arrangements are working appropriately.35

We also heard that departments were not making best use of what whistleblowing intelligence is available, for example, to help them identify systemic issues. Departments such as the Department for Education and the Department of Health operate in sectors comprising many organisations, such as schools, academies, trusts, arm’s-length bodies and regulators. Whistleblowers from these organisations can be a vital source of intelligence for the department as they provide a perspective that is not readily available in other ways. This intelligence would help the departments to identify areas that need further examination, for example by highlighting a pattern of incidents occurring in a specific organisation, or group of organisations, that is indicative of a wider issue.36 But the Department for Education told us that it does not collect intelligence on whistleblowing issues that are resolved at an individual school or academy level, and that it was unaware of 31 Q 9 32 C&AG’s Report, paras 2.6, 4.3, 4.10, 4.17 33 Q 1 34 Q 41 35 Qq 42, 44-46, 69 36 Qq123-125, 129; C&AG’s Report, para 3.14 and Figure 16 15 whether some academy chains have more whistleblowing cases than others do. The Department argued that this approach was consistent with its attempts to reduce the amount of information that it collects from individual schools, and to create an education system comprising autonomous institutions that are responsible for their own management. However, this absence of intelligence creates the risk that systemic issues will go undetected. 37

There is no-one with cross-government responsibility for driving improvements in whistleblowing arrangements. There are sources of advice and guidance on whistleblowing, but no organisation has responsibility for challenging departments or for leading change. This has led to inconsistencies in whistleblowing arrangements, with the risk that policies will not necessarily be of sufficient quality, standards may not be maintained, and good practice may not be disseminated and acted on.38

Currently, responsibility for aspects of whistleblowing arrangements is split across three organisations. The Civil Service Employee Policy service has designed a good practice whistleblowing policy that departments can adopt. But its role is discretionary and confined to policy matters, and it does not have the authority to mandate the use of its good practice policy. The Department for Business, Innovation and Skills has responsibility for the relevant legislation that provides protection for whistleblowers, but its remit does not extend to the whistleblowing arrangements within individual organisations. The Civil Service Commission can receive whistleblowing concerns from civil servants, and also provides advice on whistleblowing routes.39

HM Revenue & Customs told us that it had benefited from the role of the Civil Service Employee Policy service, and that the guidance it produces was useful. However, HM Revenue & Customs also felt that it would be useful and appropriate for organisations to be asked questions if they were not matching up to best practice, something that does not currently happen. It said, however, that such an approach should not be absolutely rigid, as it would need to take account of the particular circumstances of each organisation.40

In our previous report on special severance payments, we recommended that the Cabinet Office issue revised guidance requiring public sector organisations to seek approval from the Cabinet Office for all special severance payments and associated compromise agreements where they relate to cases of whistleblowing.41 The Government agreed with our recommendation, and stated that Cabinet Office guidance would make it clear that settlement agreements should not be used to terminate a person’s employment relating to cases of whistleblowing. The guidance would also include standard wording on confidentiality clauses to make it clear that no provision in the agreement or undertaking could prevent an employee from whistleblowing. However the Government’s response did not address the point that public sector organisations should secure approval from the 37 Qq 47-49, 52, 62, 123-125 38 Q 155; C&AG’s Report, paras 5, 2.5 39 C&AG’s Report, paras 2.2-2.4 40 Q 155 41 Confidentiality Clauses and Special Severance Payments, Thirty-sixth Report, Committee of Public Accounts, HC 477, Session 2013-14, 24 January 2014 16 Cabinet Office for all special severance payments and associated compromise agreements where they relate to cases of whistleblowing. The target of having the Cabinet Office guidance in place by 1st April 2014 has also not been met, despite assurances we had previously received.42

After our evidence sessions the Secretary of State announced that Sir Robert Francis QC will lead an independent policy review into whistleblowing and creating a culture of openness and honesty in the NHS.43 42 Treasury Minute, Government Response on the Thirty Sixth Report from the Committee of Public Accounts, Session 2013-14, Cm 8847, April 2014 43 Letter from Una O’Brien dated 23 June 2014. 17